Judgment handed down by Peter Jackson LJ 

Background

This case is an appeal to the Court of Appeal from the Family Court at Taunton. It arises from care proceedings in respect of A, B, C, and D. A and B are the children of M and F1 whilst C and D are the children of M and F2.

In 2019, F2 was accused of sexual assault by his stepdaughter, A. The allegations led to a Crown Court trial in 2020 involving both A and F2 giving evidence. F2 was acquitted.

In 2021, there were Family Court proceedings between F2 and M. A was joined as a party and a Re W assessment was ordered, however, she later decided that she did not want to give evidence. A was discharged as a party following an oral application made by F2 and she took no part in the proceeds. The court made no findings against F2 in respect of the allegations.

In 2022, an allegation of sexual assault was made against F2 by his daughter D. The local authority-initiated care proceedings. The judge in the lower court, Her Honour Judge Skellorn KC, has granted the local authority’s application for the finding of fact outcome to be reopened in respect of A’s allegations. F2 appealed on five grounds. In summary, that court was wrong:

(1) To refuse a Re W assessment before determining the reopening application.

(2) To consider the discharging of A’s party status to be a relevant issue.

(3) To consider criticism of how A was cross-examined in the criminal proceedings to be relevant.

(4) To conclude that a fact-finding exercise in respect of D’s allegations and their aetiology would be incomplete without the reopening of A’s allegations.

(5) To reopen A’s allegations where no “new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before”: Mostyn J in RL v Nottinghamshire CC [2022] EWFC 13, [2022] 2 FLR 1012, [43].

Issues

Peter Jackson LJ confirmed that the law in relation to reopening of fact in children’s cases was settled as per Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447, [2019] 1 WLR 6765 and Re CTD (A Child) (Rehearing) [2020] EWCA Civ 1316, [2020] 4 WLR 140.

The first stage is that the court considers whether it will permit any reconsideration of the earlier finding. If it is willing to do so, the second stage determines the extent of the investigations and evidence that will be considered, while the third stage is the hearing of the review itself.

At the first stage the court should take the following steps:

(1) the court should remind itself at the outset that the context for its decision is a balancing of important considerations of public policy favouring finality in litigation on the one hand and soundly based welfare decisions on the other;

(2) it should weigh up all relevant matters, including the need to put scarce resources to good use, the effect of delay on the child, the importance of establishing the truth, the nature and significance of the findings themselves and the quality and relevance of the further evidence; and

(3) above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any a different finding from that in the earlier trial. There must be solid grounds for believing that the earlier findings require revisiting.

Judgment

The grounds were rejected, and the appeal was dismissed.

Peter Jackson LJ stated that the object of proceedings is to protect the children from further harm and to achieve a soundly based welfare outcome. The extent of the investigation that is necessary to achieve that was a matter for the court’s judgement, applying correct legal principles and taking account of all the circumstances. He stated that ‘the judge’s response to this difficult decision cannot be faulted.’

Furthermore, the Court of Appeal was clear that the approach in Re RL should not be followed for two main reasons:

(1) A judge’s main responsibility is to decide the case in hand and a judgment is not a vehicle to pursue a legal theory or to run the rule over binding decisions of higher courts, all the more so where the issue does not arise in the individual case. The analysis in Re RL was, and could be, of no legal effect: see Rochdale Metropolitan Borough Council v KW [2015] EWCA Civ 1054, [2015] WLR(D) 425. Decisions that reformulate a binding legal test or set up a different test are bound to be cited to trial judges and operate as a distraction and a drain on resources, as exemplified by the need for this appeal.

(2) It is a misconception that the time-tested approach to reopening findings of fact in children’s cases has been arrived at in ignorance or defiance of the principles of res judicata in civil proceedings. Proceedings about children take place in the context of a statutory welfare imperative and, as the present appeal shows, reopening applications may arise in a very wide range of circumstances. In order to achieve just, welfare-based outcomes in these cases, the law operates a test that differs for good reason from a test identified in another context.

The full judgment can be found at: https://www.bailii.org/ew/cases/EWCA/Civ/2023/465.html

Cumberland Council v The Mother & Ors [2023] EWFC 51

Judgment handed down by HHJ Baker, sitting in the Family Court at Carlisle. This case sets out best practice to avoid delay in care proceedings arising from the late identification of potential carers for a child who may otherwise be placed for adoption.

Background

‘C’, a child, was born in mid-2022. C’s mother, ‘M’, was young and previously had a child removed from her care. The Local Authority issued an application for a Care Order with respect to C the day after she was born, with C being placed in temporary foster care. The initial social worker statement and genogram identified a number of maternal family members, including M’s two sisters and two brothers. An Order was made on 13^th June 2022 directing M to file and serve an initial statement in response to the Local Authority’s application, to include details of any person whom she wished to be assessed as a potential carer for C. M responded that, ‘unfortunately I have no family members or friends to put forward as alternative carers’.

During an Independent Social Worker Assessment, M was asked about her family and support network. She reported that she had a good bond with her sister, ‘H’, and she mentioned moving to Yorkshire in order to be closer to her. The Independent Social Worker called H, who stated that she had lost touch with M for a period of three years, but she would fully support M having care of C. The Local Authority social work manager subsequently spoke to M and asked whether H and her husband had the ability to look after C. M told the manager that H had told her that they would not be in a position to care for C. The same manager then spoke to H the day after and explained that there was a real risk that C may not be returned to M and that she may be adopted. H said that she would in fact like to be assessed as an alternative carer for C, and that this was the first time anyone from the Local Authority had spoken with her.

The Local Authority undertook an initial assessment of H and her husband. Their recommendation was for H and her husband to be assessed as Special Guardians for C. The Local Authority then made an application to re-timetable the Issues Resolution Hearing because of the need to fully assess H and her husband. The proposed draft order suggested re-timetabling the case to a further hearing after 31^st August 2023, which meant it would not reach any form of resolution until week 64, against the 26 week statutory time-limit to care proceedings.

Issues

HHJ Baker identified that there had been several missed opportunities to identify and assess H and her husband well before February 2023:

• There was a period before the Local Authority issued its application for a Care Order in relation to C, known as the pre-proceeding process.

• By the time proceedings were issued, the Local Authority should at least have had a clear picture of the family. The genogram identified M had two other sisters, so there was a ‘glaring and unacceptable omission that could easily have been rectified.’

• The period before the Independent Social Work Report could have been used to identify relatives who may wish to be assessed as possible alternative carers for C. As court proceedings had begun, any concern the Local Authority had about contacting relatives and disclosing information could have been raised and dealt with by the court.

• The Independent Social Worker identified and contacted H. It was not her job to ask H if she wished to be assessed as an alternative carer and there is no evidence that she did so. It was clear that she spoke to H for a different purpose and that H did not have a clear picture of the concerns of the Local Authority, or the possible outcomes for C.

It was submitted on behalf of the Local Authority that they are, to a large degree, reliant upon parents to identify alternative carers and in this case, M had not done so. HHJ Baker did not agree with this assertion and felt it necessary in his judgment to attempt to rectify any misunderstanding as to the approach to be taken, and to encourage an attitude which seeks to avoid delay.

Judgment

HHJ Baker set out why such an approach to the Local Authority’s identification of alternative carers was wrong both in law and represented poor practice:

1. The Statutory Time-Limit

s.1(2) of the Children Act 1989 states that, ‘In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.’

s.32(1)(a) of the Children Act 1989 states that, ‘any such application shall be disposed of without delay and in any event within twenty-six weeks of the application being issued, so far as is reasonably practicable.’

On 16^th January 2022, The President of the Family Division relaunched the Public Law Outline, as per FPR PD12A. This provided a template for case management of proceedings with a view to reducing delay and brining cases within the statutory 26 week time limit. The webinar and PowerPoint with the key points of the re-launch can be found at: https://www.judiciary.uk/courts-and-tribunals/family-law-courts/re-launch-of-the-public-law-outline-plo/

1. Identifying Potential Alternative Carers

s.22C of the Children Act 1989 emphasises that the Local Authority has a statutory duty to place a child in its care primarily with a parent. In the event a parent cannot care for the child, the next statutory preference is consideration of relatives friends, and connected person who are also approved as foster carers (ss.6 and 7).

An approach by a Local Authority that ignores the reality, that relying on parents to nominate alternative carers, is fraught with potential difficulty and leads to extra pressure on their resources. Inevitably at the end of a case, a late-discovered relative needing to be assessed gives rise to appropriate concern about delay. Consideration of potential alternative carers should begin at the earliest possible opportunity, where possible during the pre-proceedings process. The Local Authority should commence construction of a full and detailed genogram as early as possible to identify the relatives and relationships that may (a) assist in meeting the needs of the child, so as to avoid care proceedings and (b) may be candidates for providing alternative care for the child so as to avoid temporary foster care or ultimately adoption.

This case serves as a warning to parties that poor practice and non-compliance with court directions may in the future be met with a more robust approach to wasted costs incurred unnecessarily, or as a consequence. The judiciary are likely to be vigilant with respect to ensuring directions have been complied with prior to the first Case Management Hearing and practitioners can expect to be asked to provide detailed explanations for failure to comply, or any delay caused which is in excess of the 26 week statutory time limit.

The full judgment can be found at: https://www.bailii.org/ew/cases/EWFC/HCJ/2023/51.html

Re H (Parents With Learning Difficulties: Risk of Harm)[2023] EWCA Civ 59

Judgment handed down by Baker LJ on appeal against care and placement orders made by HHJ Lopez in respect of ‘H’, a child. This case sets out why it is unacceptable for a Local Authority to pursue a plan for adoption on the basis that they are unwilling to support the child living at home because the parent(s) suffers with learning difficulties.

Background

H, 22 months old at the time, was the youngest child of parents who both suffered from cognitive difficulties. H has three older brothers, D, E and F and a sister, G. All four siblings have cognitive impairments. The Local Authority became involved with the family in 2011 when D, who was 12 at the time, allegedly sexually touched a 5 year old girl, following which he was placed into foster care with the parents’ agreement. Over the years there were numerous referrals about the children’s relationships with associates of the family, including E and F displaying sexualised behaviour. In 2019, E dragged his mother from the bath to the landing and sexually assaulted her. He was made subject to a full care order. In 2011, final care orders were made in respect of F and G, with F remaining at home and G placed in long-term foster care.

In March 2021, M gave birth to H. Three days later, the Local Authority issued care proceedings and H was subject to an Interim Care Order, but remained at home with her parents under a working agreement. Over the following year, there were no concerns about M’s basic childcare and professionals observed her to be emotionally warm and affectionate. Nevertheless, in June 2022 at a final hearing, HHJ Lopez made care and placement orders and refused M’s application for permission to appeal.

Issues

The key issues on appeal were:

1. The Judge had not analysed the risk of sexual harm to H on the basis of proven facts, but rather on unproven allegations and concerns;

1. While the Judge had cited relevant passages from Re D (A Child) (No.3) [2016] EWFC 1, he had erred in accepting evidence from the Local Authority and the Guardian that the support needed for the parents to care for H would amount to “substituted parenting”, without having details of any support package that could have been put in place, or analysing the impact on H and how any difficulties could have been mitigated;

• The Judge did not make a careful assessment of what, if any, the Local Authority had done to support the parents. He did not consider properly the submissions of the parents that the Local Authority had failed to provide the correct services and a structured written safety plan to the family, including that educational work that had been recommended for them but had not been delivered.

1. The Judge had not adequately evaluated matters of proportionality by failing to consider the option of placement with parents.

Judgment

Baker LJ held that, ‘Before a court can take into account any harm which the child is at risk of suffering, the risk has to be established on the basis of proven fact, not a mere possibility.’ s.1(3)(e) of the Children Act 1989 and s.1(4)(e) of the Adoption and Children Act 2002 both require the court to take into account any harm which the child is at risk of suffering, not is possibly at risk of suffering. Any considered harm must be established on the basis of proven fact. Although the Judge warned himself that the allegations about H’s brothers’ sexualised behaviour was unproven, he proceeded on the basis that H was at risk of sexual harm.

Further, it was held that there was insufficient scrutiny upon the evidence about the support required for the parents to care for H. ‘The starting point should have been to identify the level of support needed by the family, secondly to ascertain what can and should be done under the Local Authority’s obligations, and thirdly to determine whether with that in place the child’s welfare needs will be met.’

It was concluded that this process was not carried out. The Judge did not adequately evaluate the situation as it was at the time i.e. the fact H had remained at home, was being well cared for and had a close attachment to M. The care and placements orders were therefore discharged, and the case remitted to the Family Court for a re-hearing.

The full judgment can be found at: https://www.bailii.org/ew/cases/EWCA/Civ/2023/59.html

Written by Pupil Barristers Fintan Molloy and Chloe Pinches